A witness for the respondent testified that at the interview, he did ask the applicant the reason why he had left his previous employment, and the applicant had answered that he was looking for better opportunities. Under cross-examination, witnesses for the respondent confirmed that the applicant had the opportunity to disclose the fact that he was dismissed from Impala, but failed to do so. For various reasons, it was held that there were procedural defects regarding the procedure followed by the employer prior to dismissing the applicant.
In other words, the arbitrator ruled that the dismissal was procedurally unfair but substantively fair.
The substantive reason for the dismissal was a fair reason - namely the reason for the dismissal was because the applicant had failed to disclose vitally important information regarding the termination of his employment with his previous employer. Despite the fact that the arbitrator found that the dismissal was procedurally unfair, he did not award any compensation to the applicant for procedural unfairness. In other words, said the arbitrator, against this background the applicant is the architect of his own fate, and therefore is not entitled to any compensation. This matter must have consumed a large amount of the employer's time and resources, considering the interview process, the administrator of procedures to be adhered to in employing somebody, then the dismissal, CCMA conciliation, CCMA arbitration and probably a bit more.
The decisions in these cases mean that employers must:. The EEA applies to employees, employers and applicants for employment. This Act prohibits unfair discrimination on listed grounds such as sexual orientation, religion and disabilities. The Act further states that it is not unfair to distinguish, exclude or prefer any person on the basis of an inherent requirement of a job, meaning that we may ask applicants to disclose information in order to determine their suitability for a specific position.
It is also evident that it is not prohibited to ask applicants about their past criminal records since the Act does not mention criminal records as a form of discrimination.
Employers are however advised to tread carefully when it comes to criminal records. It would be unfair to take a past criminal record for a minor offense into consideration when there is no such inherent requirement associated with the position. In such cases the applicant may have a case of unfair discrimination.
Medical testing of applicants are prohibited unless legislation permits or requires such testing or it is justifiable in the light of medical facts, employment conditions, social policy, the fair distribution of employee benefits or the inherent requirement of a job. Psychometric testing and other similar assessments are prohibited unless the test or assessment has been scientifically shown to be valid and reliable, can be applied fairly to the employees and is not biased against any employee or group.
For more information contact. Case Law Summaries and Articles. Can employees be dismissed for refusing to accept new terms and conditions of employment?
Employment background check guide for job applicants
Can an employer dismiss employees because they refuse to agree to a change to their terms and conditions of employment? Freedom of expression or incitement to commit an offence? A constitutional challenge.
Consolidated, comprehensive or general final written warnings. This approach regards the purpose of discipline as a means for employees to know and understand what standards are required of them.
It Inspires Loyalty
The edition of the Labour Law and Employment Manual is now available click here for more information. Managerial and Leadership Skills. Emperors Palace: Convention Centre. Employment Equity Committee Training. Our Clients. Also ask about criminal records and other factors that are inherent to the position.
Matters become more complicated when the employer failed to ask these questions and later attempts to dismiss employees for misrepresentation or operational reasons. Labour Guide. All Rights Reserved. Desktop Version. The website is not compatible with this IE version,please upgrade to the latest version of Internet Explorer download here. Generally, the information they check will be related to the job. For example, if you are hired to work in a bank, it would be reasonable for the employer to check whether you have a history of embezzlement or theft.
The extensiveness of a background check depends on the employer, company, and the job involved. For example, if you are applying for a government job with a high security clearance , you will likely undergo a very thorough background check.
- Conducting Criminal Record Checks on Prospective Hires.
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What can't be included in a background check? There is some information that cannot be disclosed under any circumstances. This information includes bankruptcies after 10 years, civil suits and civil judgments and records of arrest after 7 years, paid tax liens after 7 years, and accounts placed for collection after 7 years.
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Employers can only look into certain records with your consent. For example, school records are confidential and cannot be released without the consent of the student. Military service records are also confidential and can only be released under certain circumstances.
However, the military can disclose your name, rank, salary, assignments, and awards without your consent. You cannot be discriminated against because you filed for bankruptcy; however, bankruptcies are a public record, so it is easy for employers to obtain the information. Laws also vary from state to state regarding some background checks. For example, some states don't allow questions about arrests or convictions beyond a certain point in the past.
Why This Background Check Company Wants to Hire People With Criminal Records
Others only allow consideration of criminal history for certain positions. In many states, medical records are also confidential.
However, employers may not make hiring decisions based on an applicant's disability. They may only inquire about your ability to perform a certain job. The best way to prepare for a background check is to be aware of the information that an employer might find. If there is erroneous information, dispute it with the creditor or other source. Check your motor vehicle record by requesting a copy of your record from your state department of motor vehicles. Do the same with your other records, including your education, court records, and more. Also ask your previous employers for copies of your personnel files.
Make sure you know what your references are going to say about you.